on writ of certiorari to the united states court of appeals for the fifth circuit

[April 23, 2013]

Justice Thomas, dissenting.

A plain reading of
18 U. S. C. §924(c)(2) identifies two requirements that must be satisfied for a state offense to qualify as a “felony punishable under the Controlled Substances Act [(CSA)].” “First, the offense must be a felony; second, the offense must be capable of punishment under the [CSA].” Lopez v. Gonzales,
549 U. S. 47,
61 (2006)
(Thomas, J., dissenting). Moncrieffe’s offense of pos-session of marijuana with intent to distribute satisfies both elements. No one disputes that Georgia punishes Moncrieffe’s offense as a felony. See Ga. Code Ann. §16–13–30(j)(2) (Supp. 2012). (“Except as otherwise provided in subsection (c) of Code Section 16–13–31 or in Code Section 16–13–2, any person who violates this subsection shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one year nor more than ten years”).
[
1
]
And, the offense is “punishable under the [CSA],”
18 U. S. C. §924(c)(2), because it involved “possess[ion] with intent to manufacture, distribute, or dispense, a controlled substance,”
21 U. S. C. §841(a)(1). Accordingly, Moncrieffe’s offense is a “drug trafficking crime,”
18 U. S. C. §924(c)(2), which constitutes an “aggravated felony” under the Immigration and Nationality Act (INA),
8 U. S. C. §1101(a)(43)(B).
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2
]

The Court rejected the plain meaning of
18 U. S. C. §924(c)(2) in Lopez. 549 U. S., at 50. There, the defendant was convicted of a state felony, but his offense would have been a misdemeanor under the CSA. Id., at 53. The Court held that the offense did not constitute a “ ‘felony punishable under the [CSA]’ ” because it was not “punishable as a felony under that federal law.” Id., at 60 (quoting §924(c)(2); emphasis added). I dissented in Lopez and warned that an inquiry into whether a state offense would constitute a felony in a hypothetical federal prosecution would cause “significant inconsistencies.” Id., at 63. I explained that one such inconsistency would arise if an alien defendant never convicted of an actual state felony were subject to deportation based on a hypothetical federal prosecution. Id., at 67.

This precise issue arose in Carachuri-Rosendo v. Holder, 560 U. S. ___ (2010). Instead of following the logic of Lopez, however, the Court contorted the law to avoid the harsh result compelled by that decision. In Carachuri-Rosendo, the defendant was convicted of a crime that the State categorized as a misdemeanor, but his offense would have been a felony under the CSA because he had a prior conviction. 560 U. S., at ___ (slip op., at ___). The Court held that the offense did not constitute an “aggravated felony” because the state prosecutor had not charged the existence of a prior conviction and, thus, the defendant was not “actually convicted of a crime that is itself punishable as a felony under federal law.” Id., at ___ (slip op., at 17). Concurring in the judgment, I explained that the Court’s decision was inconsistent with Lopez because the defendant’s conduct was punishable as a felony under the CSA, but that Lopez was wrongly decided and that a proper reading of §924(c)(2) supported the Court’s result. 560 U. S., at ___ (slip op., at 1). Carachuri-Rosendo’s crime of conviction was a state-law misdemeanor and, as a result, it did not qualify as a “felony punishable under the [CSA].” See ibid.

I declined to apply Lopez in Carachuri-Rosendo, and I am unwilling to apply it here. Indeed, the Court itself declined to follow the logic of Lopez to its natural end in Carachuri-Rosendo. And, now the majority’s ill-advised approach once again leads to an anomalous result. It is undisputed that, for federal sentencing purposes, Moncrieffe’s offense would constitute a federal felony unless he could prove that he distributed only a small amount of marijuana for no remuneration. Cf. United States v. Outen, 286 F. 3d 622, 637–639 (CA2 2002) (Sotomayor, J.) (agreeing with the Government that
21 U. S. C. §841(b)(4) is a mitigating exception to the “default provision” under §841(b)(1)(D) and that it need not negate the §841(b)(4) factors to support a sentence under §841(b)(1)(D)). But, the Court holds that, for purposes of the INA, Moncrieffe’s offense would necessarily correspond to a federal misdemeanor, regardless of whether he could in fact prove that he distributed only a small amount of marijuana for no remuneration. Ante, at 11 (asserting that neither §841(b)(1)(D) nor §841(b)(4) is the “default” provision). The Court’s decision, thus, has the effect of treating a substantial number of state felonies as federal misdemeanors, even when they would result in federal felony convictions.

The majority notes that “[t]his is the third time in seven years that we have considered whether the Government has properly characterized a low-level drug offense as . . . an ‘aggravated felony.’ ” Ante, at 20–21. The Court has brought this upon itself. The only principle uniting Lopez, Carachuri-Rosendo, and the decision today appears to be that the Government consistently loses. If the Court continues to disregard the plain meaning of §924(c)(2), I expect that these types of cases will endlessly—and needlessly—recur.

I respectfully dissent.

Notes

1
Section 16–13–31(c) (Supp. 2012) increases the punishment for trafficking in marijuana, while §16–13–2(b) (2011) decreases the punishment for simple possession of 1 ounce or less of marijuana. Neither provision is applicable to Moncrieffe’s offense of possession of mari-juana with intent to distribute.
The Court correctly points out that Moncrieffe was sentenced pur-suant to §16–13–2(a) because he was a first-time offender. Ante, at 3. That provision does not alter the felony status of the offense. Rather, it gives courts discretion to impose probation instead of imprisonment and to do so without entering a conviction. As the majority recognizes, petitioner has waived any argument that he was not convicted for pur-poses of the Immigration and Nationality Act. Ante, at 3, n. 2.

2
See
(providing that aliens convicted of an “aggravated felony” after admission are deportable); §1229b(a)(3) (providing that aliens convicted of an “aggravated felony” are ineligible for cancellation of removal); §1101(a)(43)(B) (defining “aggravated felony” as “illicit trafficking in a controlled substance . . . including a drug trafficking crime (as defined in [
])”);
(defining “drug trafficking crime” as “any felony punishable under the [CSA]”).

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